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FIRST DIVISION
May 14, 2001

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiff, the estate of Norma Price, appeals the trial court's denial of her cause of actionunder section 155 of the Insurance Code (215 ILCS 5/155 (West 1998)) against defendant, UniversalCasualty Company. Plaintiff's decedent (Norma) was involved in a hit-and-run accident andobtained an arbitration award for uninsured motorists benefits. After defendant refused to pay thearbitration award, plaintiff brought this complaint to confirm the arbitration award and for section155 damages. Plaintiff's complaint alleged that "Universal's conduct in this cause in failing to seekjudicial determination of coverage disputes prior to the arbitrator [sic], in failing to participate in thearbitration[,] and failing and refusing to pay said award in full and in a timely manner, despiterepeated demands for payment of same, amount to vexatious and unreasonable conduct within themeaning of [section 155]." On appeal, plaintiff argues that the trial court's denial of her section 155claim is against the manifest weight of evidence.

Initially, we note that plaintiff mainly relied on documentary evidence to establish a section155 violation. Although the trial court initially denied plaintiff's counsel's request to admit intoevidence documents that he received pursuant to a request to produce, the court allowed plaintiff'scounsel to admit into evidence original documents from defendant's claim file. In addition, the courtallowed plaintiff to call defendant's claim manager, who testified that these documents werecontained in defendant's file and maintained in the ordinary course of business. The court alsoadmitted into evidence correspondences between the parties' counsel. Finally, the court either tookjudicial notice of or, without any objection, admitted into evidence several court orders.

The documentary evidence established that on January 30, 1997, Norma was in a motorvehicle accident and sustained personal injuries. Norma reported the claim to defendant on February4, 1997, and defendant described the accident in its claim form as a "Hit & Run." On September 17,1998, defendant's claims manager wrote "this is a one-vehicle accident where our insured apparentlyclaimed that they [sic] were cut-off by an unknown vehicle and forced into a wall resulting in animpact with a fixed object." Defendant's claims manager further wrote that the police report did notmention that Norma came in contact with an uninsured vehicle and that he was waiting to raise thatissue until Norma gave a sworn statement. Defendant's claims manager additionally wrote that areport in the file indicated that Norma sustained a broken wrist and herniated disk.

The case was scheduled for arbitration. On February 1, 1999, defendant moved to stay thearbitration, which the circuit court denied in case number 98 CH 13682. On February 22, 1999, thearbitrator then found in favor of Norma and awarded her $20,000, the limits of her insurance policy.On March 2, 1999, plaintiff filed this action. On August 19, 1999, the trial court granted plaintiff'smotion for summary judgment to confirm the arbitration award. The court ordered defendant to payplaintiff $20,000, costs, and interest from the date of the award. Defendant then offered to settlewith plaintiff for $15,000 and told plaintiff's counsel that if plaintiff did not accept the offer,defendant would appeal.

On September 24, 1999, plaintiff's counsel wrote to defendant's counsel to determine thestatus of the case. Plaintiff's counsel noted that he had left telephone messages on September 22,23 and 24, 1999, which had not been returned. Plaintiff's counsel gave defendant until September29, 1999, to make full payment of the judgment or plaintiff would start collection proceedings. OnSeptember 30, 1999, defendant delivered to plaintiff's counsel a check for $20,450. In an attachedletter, defendant's counsel recognized that plaintiff's counsel "may have calculated interest and costsdifferently." Defense counsel explained that if his calculations were less than plaintiff's, he would"deliver a check for the balance upon your notification."

On September 30, 1999, plaintiff's counsel responded that the total due to plaintiff, includinginterest from the date of the arbitration award until September 30, 1999, and costs was $21,329.Plaintiff's counsel, therefore, requested defendant to pay an additional $829 to satisfy the judgment. On October 8, 1999, defense counsel responded that "[defendant] will not be paying interest fromthe date of the arbitration award." Defense counsel further stated that plaintiff brought thedeclaratory action at her own "peril." Defense counsel offered to "listen" if plaintiff revised herdemand. Plaintiff then instituted garnishment proceedings, and on November 18, 1999, the courtordered defendant's garnishee to pay plaintiff $929.

After plaintiff rested, defendant moved for a directed finding. The court ruled that it hadbeen presented with no "real evidence in the court's view that would substantiate the claim ofvexatious interruption and delay in a trial." Despite this finding, the court discussed the nature ofthe evidence before it. The court believed that defendant was "aggressive" and that delay could beinferred from the documents. The court, however, believed that some of the delay could also beattributed to plaintiff. The court also found some "vexation" but attributed this to the nature of thecontested litigation. The court, therefore, granted defendant's motion for a directed finding. Thisappeal followed.

As defendant correctly notes, the trial court granted defendant's motion for a directed findingpursuant to section 2-1110 of the Code of Civil Procedure. 735 ILCS 5/2-1110 (West 1998). Section 2-1110 allows a defendant to move for a finding in the defendant's favor at the close ofplaintiff's case. It further states: "In ruling on the motion the court shall weigh the evidence,considering the credibility of the witnesses and the weight and quality of the evidence." 735 ILCS5/2-1110 (West 1998). Under this section, the court conducts a two-part analysis. First, itdetermines whether plaintiff has presented a prima facie case, and, if not, it enters judgment in favorof the defendant. In re Estate of Goldstein, 293 Ill. App. 3d 700, 709 (1997). If the court finds thatplaintiff has presented a prima facie case, the court then considers the general weight and quality ofthe evidence before it, including evidence favorable to the defendant. In re Estate of Goldstein, 293Ill. App. 3d at 709. After weighing this evidence, the court applies the standard of proof requiredfor the underlying case to determine whether sufficient proof remains to sustain plaintiff's primafacie case. Wehde v. Regional Transportation Authority, 237 Ill. App. 3d 664, 676 (1992). If thecourt finds insufficient proof to satisfy the required burden of proof, the court should grant themotion and enter judgment against the plaintiff. Wehde, 237 Ill. App. 3d at 676. The trial court'sdecision under the second part of this analysis will not be disturbed unless it is against the manifestweight of the evidence. Evans v. Gurnee Inns, Inc., 268 Ill. App. 3d 1098, 1102 (1994).

In this case, the record indicates that the trial court weighed and evaluated plaintiff'sevidence. After defendant moved for a directed judgment, the court indicated that it "was leaningtowards entering a judgment for the time" defendant delayed in paying the arbitration award. However, after reviewing plaintiff's counsel's affidavit detailing the time he spent on the case, thecourt noted that plaintiff filed a garnishment proceeding before receiving defendant's letter thatdisputed the amount of interest defendant owed. Therefore, based on the court's oral ruling and itsdiscussion of the evidence, the court determined that plaintiff satisfied her prima facie case butprovided insufficient "competent" evidence to satisfy her burden of proof. We, therefore, mustdetermine if the court's finding that plaintiff did not meet her burden of proof to establish a violationof section 155 is against the manifest weight of evidence.

To determine whether the insurer's conduct was vexatious and unreasonable, the court shouldconsider "the insurer's attitude, whether the insured was forced to file suit to recover, and whetherthe insured was deprived of the use of its property." Mobil Oil Corp. v. Maryland Casualty Co., 288Ill. App. 3d 743, 752 (1997). Section 155 is also intended to prevent the insurer from using itssuperior financial position to profit at the insured's expense. Valdovinos v. Gallant Insurance Co.,314 Ill. App. 3d 1018, 1022 (2000). A trial court must consider the insurer's conduct in the totalityof the circumstances. Marcheschi v. Illinois Farmers Insurance Co., 298 Ill. App. 3d 306 (1998). In addition, when there is a bona fide dispute as to whether an insurance policy was in effect at thetime of the loss, an insurer may delay in paying the claim. Peerless Enterprise, Inc. v. Kruse, 317Ill. App. 3d 133, 145 (2000).

Plaintiff asserts that its documentary evidence establishes unreasonable and vexatious delay.Plaintiff cites the following conduct: defendant moved to stay the arbitration; defendant then refusedto pay the award, requiring plaintiff to file suit; when the trial court confirmed the arbitration award,defendant neither appealed the trial court's judgment nor paid within 30 days of the judgment; andto recover the full amount of the court's judgment, plaintiff was required to initiate collectionproceedings. A review of the documents plaintiff submitted provides evidence that defendant'saction and delay in either settling or paying the claim was unreasonable and vexatious. Specifically,defendant's attitude was to delay settlement and payment of this claim; defendant required plaintiffto bring suit; defendant did not offer any settlement until the trial court ruled against it; anddefendant refused to comply with the court's order awarding plaintiff interest from the date of thearbitration award. We believe that, under the totality of circumstances, plaintiff's documentaryevidence established sufficient unreasonable delay and vexatious conduct to support a claim undersection 155.

The trial court, in fact, acknowledged delay and vexatious conduct. Plaintiff filed suitbecause defendant refused to arbitrate plaintiff's dispute or accept the arbitration award. When thetrial court confirmed the arbitration award and ordered defendant to pay interest, defendant did notsubmit payment or appeal the award within 30 days. Defendant eventually paid part of the judgmentbut only after plaintiff's counsel demanded payment and indicated the intent to initiate collectionproceedings. After plaintiff's counsel told defendant's counsel that it had not paid the full judgment,defense counsel responded that it would "not be paying interest from the date of the arbitrationaward." That response directly contradicted the earlier court order requiring defendant to pay interestfrom the date of the award. Therefore, although defendant did not appeal the trial court's award ofinterest, it still refused to pay interest and required plaintiff to initiate collection proceedings. Therecord reflects sufficient competent evidence that defendant's conduct caused unreasonable delay.

Relying on the affidavit from plaintiff's counsel regarding his fees for representing plaintiff,the trial court concluded that plaintiff's counsel initiated collection proceedings before he gavedefendant an opportunity to pay the judgment. This conclusion was erroneous for two reasons. First,the affidavit was offered only to establish the fees of plaintiff's counsel for damage purposes. Recognizing this purpose, the trial court reserved ruling on the admissibility of the affidavit. Second,the record reflects that plaintiff did not initiate garnishment proceedings until October 12, 1999. Bythat time, 43 days had passed since the trial court issued its judgment. Moreover, defendant hadinformed plaintiff on October 8, 1999, that it would not comply with the judgment and pay interestfrom the date of the arbitration hearing. As noted above, defendant's initial insistence on not payingthe arbitration award and later refusal to pay the interest left plaintiff's counsel with little choice butto initiate collection proceedings.

Defendant argues that it made a reasonable attempt to investigate the claim, but plaintiffprevented it from completing this investigation. Even if true, this does not excuse defendant'sconduct in refusing to pay the arbitration award, requiring plaintiff to file suit, and then refusing topay the court's judgment. In any event, defendant offers little evidence that it reasonably attemptedto investigate the claim. It only cites two letters that it sent to plaintiff's counsel requesting evidenceof damages to plaintiff's car, plaintiff's sworn statement, and evidence of medical damages. Defendant claims that plaintiff did nothing in response to these letters. Defendant, however, pointsto no specific evidence that plaintiff's counsel did not comply with defendant's attempt to investigatethe claim. On May 19, 1998, plaintiff's counsel demanded arbitration and settlement of the causefor the policy limits of the insurance policy. On July 24, 1998, plaintiff's counsel again demandedarbitration and requested that defendant contact his office to set a date for the sworn statement. OnSeptember 28, 1998, defendant admits in a letter that it received plaintiff's request for an arbitration,that Norma claimed that she was "cut-off by an unknown vehicle," and that Norma sustained abroken wrist and herniated disk. Defendant cites no letters or evidence that after July 24, 1998, itattempted to set up plaintiff's sworn statement or that it contacted plaintiff's counsel to obtainevidence of damages. In addition, the record reflects that defendant never demanded or set a datefor Norma's sworn statement and that Norma eventually gave an evidence deposition upon plaintiff'scounsel request. At this point in the proceedings, the record does not reflect evidence in support ofdefendant's argument that it reasonably attempted to investigate the claim.

Defendant next argues that a bona fide dispute over coverage explains its delay in not payingthe claim. Defendant initially notes that it filed a declaratory action in 1998 to dispute coverage. However, the trial judge in that case denied defendant's motion to stay the arbitration. The recordcontains little evidence of this declaratory action or how it was resolved. If defendant had evidencein 1998 that its insurance policy did not cover plaintiff's accident, which it never submitted duringthe bench trial, then the circuit court would have been required to stay the arbitration until theresolution of the coverage dispute. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533,542-44 (1992). Defendant, therefore, has not shown how this declaratory action establishes a bonafide dispute of coverage and allowed it to delay settling or paying the claim. Nor has defendantexplained why this bona fide dispute excused it from paying plaintiff the full amount of thearbitration award, plus costs and interest, within 30 days of the trial court's August 19, 1999,judgment. In fact, defendant did not pay plaintiff the arbitration award until plaintiff's counsel leftnumerous phone messages and indicated the intent to initiate collection proceedings. Based on therecord at this point in the proceedings, we cannot say that a bona fide dispute in coverage explaineddefendant's delay in either settling or paying the claim.

Defendant also notes that plaintiff should have filed a bill of costs and not initiatedgarnishment proceedings to recover the interest on the arbitration award that the trial court ordereddefendant to pay. Section 155 directs the court to examine the action and delay of the insurancecompany and whether that action or delay was vexatious and unreasonable. 215 ILCS 5/155 (West1998); see also Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513 (1996). We reject defendant'sargument that it should be excused from liability under section 155 for not paying a judgment orinterest, as ordered by the court, because plaintiff chose one means of enforcement over another. Plaintiff's counsel brought the garnishment action because defense counsel told him that defendantwas not paying for interest on the award even though the trial court ordered it to pay the interest 51days earlier. Plaintiff brought the garnishment proceedings to collect the money owed to plaintiffby defendant. At the time plaintiff undertook the garnishment proceedings, it had been over 2